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socrateaser, Lawyer

Category: California Employment Law

Satisfied Customers: 35214

Experience: Retired (mostly)

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I was given an employee warning that states I did not show

Resolved Question:

I was given an employee warning that states " I did not show the willingness to take an independent position in the face of opposition. I did not show the ability to get outside of the comfort zone and risk doing things differently. I did not challenge the managers direction even though it did not follow the company's documented business processess.I was told this by the regional manager. Who 16 months earlier told me they brought in this staff to show "me how it was done". Recently we shrank 48,000 dollars in an inventory because this was condoned by the manager and assistant manager in the daily running of the business. I have also been written up for two customer service complaints. I was demoted 16 months ago and told they were to show me how it is to be done. Ihave been with said company for seven years.

Under California Labor Code 2922, an employer can terminate or demote an employee "at will:" at any time, for any reason, or for no reason at all. There are four exceptions to the law:

1. The employee has an employment contract with a specified future termination date of more than one month after the commencement of employment;

2. The employer has engaged in unlawful discrimination based upon race, color, nationality, ancestry, religion, sex, sexual orientation, pregnancy, unequal pay between sexes, age or disability;

3. The employer has terminated the employee in violation of a well-established public policy (jury duty, witness subpoena, whistleblower statute, report of employer's criminal activities to law enforcement, etc.);

4. The employer has violated its own disciplinary policy, which provides for a specific process that must be followed prior to any termination of employment.

Your facts do not "on their face" provide any evidence that fits into one of the above-described exceptions. Therefore, at this point, the answer is that you have no wrongful termination or demotion claim. This doesn't mean that other facts could be presented that would change this outcome -- just that from what you've stated thus far, there is nothing that pops out at me, crying, "Foul!"

Many business engage in a practice called "managing out," where there is an employee that they seek to terminate without creating legal liability. The employer starts compiling policy and performance violations against the employee that would rarely be levied against any other employee under similar circumstances, until there are sufficient violations to permit the employer to terminate -- usually with the claim that the employee violated an important employer rule, which will disqualify the employee from receiving unemployment benfits.

This appears to be where you are at. The only way to defeat this activity by the employer is to find a counterclaim that you can make which puts the employer in fear that continued actions may result in a government investigation -- usually for unlawful discrimination. For example, if you observe that you represent a minority class of any that I have described above, and coworkers do not, then there is a potential inference that you are being discriminated against, even if not by the employer as a whole, then by the supervisor -- which is all that's necessary.

I don't know which box you might fit into, but if you can think of one that fits, and you express your concern to HR that your supervisor, for example, has made disparaging remarks to you about hispanics -- or, that your supervisor asked you to lunch and put his/her hand on yours. And, when you refused, the supervisor gave you a glaring look and stormed off -- I can absolutely guarantee that this sort of comment will send off red flares all of the HR department and more than likely, you or your supervisor will be transferred away from one another immediately.

I can't tell you what to do, and I won't encourage you to lie. But, you have the right to protect yourself, and sometimes a little bit of knowlege goes a long way.

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